Citation Nr: 1401790
Decision Date: 01/14/14 Archive Date: 01/31/14
DOCKET NO. 09-35 958 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Entitlement to an increased evaluations for Type II diabetes mellitus with erectile dysfunction, diabetic polyneuropathy of the left upper extremity,
diabetic polyneuropathy of the right (major) upper extremity, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, and non-proliferative diabetic retinopathy with macular edema.
2. Entitlement to a total rating for individual unemployability due to service connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Air Force from September 1965 to December 1969 (which included temporary duty in the Republic of Vietnam from March 1968 to April 1968); February 1985 to July 1986; and September 1990 to July 1991.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) rating decisions which, inter alia, denied the Veteran's claims for a TDIU and increased evaluations for his service-connected Type II diabetes mellitus with erectile dysfunction, diabetic polyneuropathy of the left and right upper extremities, peripheral neuropathy of the left and right lower extremities, and non-proliferative diabetic retinopathy with macular edema. The Atlanta, Georgia, VA Regional Office (RO) is the agency of original jurisdiction over the current appeal.
At an August 2013 hearing, the Veteran, accompanied by his representative, appeared at the RO to present evidence and oral testimony in support of his appeal before the undersigned traveling Veterans Law Judge. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration.
FINDINGS OF FACT
1. In August 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of this appeal with regard to only the pending claims for increased ratings for Type II diabetes mellitus with erectile dysfunction, diabetic polyneuropathy of the left and right upper extremities, peripheral neuropathy of the left and right lower extremities, and non-proliferative diabetic retinopathy with macular edema is requested.
2. The Veteran is precluded from securing and following a substantially gainful occupation, including in a sedentary capacity, by reason of his service-connected diabetes-related disabilities.
CONCLUSIONS OF LAW
1. The criteria for withdrawal by the appellant of the pending claims on appeal for increased ratings for Type II diabetes mellitus with erectile dysfunction, diabetic polyneuropathy of the left and right upper extremities, peripheral neuropathy of the left and right lower extremities, and non-proliferative diabetic retinopathy with macular edema have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).
2. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(a), 4.25 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to increased ratings for Type II diabetes mellitus with erectile dysfunction, diabetic polyneuropathy of the left and right upper extremities, peripheral neuropathy of the left and right lower extremities, and non-proliferative diabetic retinopathy with macular edema.
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, at the August 2013 hearing before the undersigned Veterans Law Judge, the appellant expressly withdrew his appeal with regard to only those issues presently in appellate status that relate to pending claims for increased ratings for Type II diabetes mellitus with erectile dysfunction, diabetic polyneuropathy of the left and right upper extremities, peripheral neuropathy of the left and right lower extremities, and non-proliferative diabetic retinopathy with macular edema; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these aforementioned issues. Accordingly, the Board does not have jurisdiction to review the appeal of these matters and it is thusly dismissed.
II. Entitlement to a TDIU.
The appeal for the claim of entitlement to a TDIU is being granted in full. Any error that may exist with regard to VA's duty to notify and assist is thereby rendered moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012);
38 C.F.R. § 3.159 (2013).
The Veteran's multiple service connected disabilities meet the schedular requirements for a TDIU as outlined by 38 C.F.R. § 4.16(a). That is, he has a combined rating of 90 percent with at least one serviced connected disability rated at 40 percent or higher. With regard to the specific question of the impact of the Veteran's service-connected disabilities, particularly his diabetes, on his occupational capacity, his treating private physician, C.E., M.D., expressed an opinion in October 2008 that the Veteran was not able to continue working because of diabetic neuropathy and retinopathy and poorly controlled diabetes mellitus. In an August 2013 statement, Dr. E. opined that:
The [Veteran] is disabled due to chronic illness. He [i]s not able to continue working [due to] diabetes mellitus[,] diabetic retinopathy[, and] diabetic neuropathy.
Therefore, resolving any doubt that may exist in favor of the Veteran, the Board concludes that he is unable to obtain and retain gainful employment due to his service-connected psychiatric disorder and disabilities associated with his service-connected diabetes mellitus (including impaired vision and neurological impairment of his upper and lower extremities). His claim for a TDIU under the regulatory provisions of 38 C.F.R. § 4.16(a) is thusly granted. 38 U.S.C.A.
§ 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
The present appeal, as it pertains only to those relating to claims for increased ratings for Type II diabetes mellitus with erectile dysfunction, diabetic polyneuropathy of the left and right upper extremities, peripheral neuropathy of the left and right lower extremities, and non-proliferative diabetic retinopathy with macular edema, is dismissed.
A TDIU is granted.
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs